OSHA silica rule sets stage for legal battle

The legal battle has just begun over the Occupational Safety and Health Administration's final rule lowering the limits of breathable silica, with betting on both sides whether the stricter requirements will survive judicial scrutiny.

Following OSHA's issuing the final rule in late March, a coalition of trade associations filed a legal challenge April 4 in the 5th U.S. Court of Appeals in New Orleans, a jurisdiction where several of the associations are based.

Opponents argue OSHA ignored concerns about the technological and economic feasibility of lowering the maximum exposure over an eight-hour shift to 50 micrograms per cubic meter of air for the construction industry, one-fifth of the current maximum, as well as for general industry and the maritime industry, half of the current maximum.

OSHA said on its website that it made “substantial changes” to its original proposal in response to testimony from 200 people and 2,000 comments to devise the Occupational Exposure to Respirable Crystalline Silica rule.

While OSHA estimates the rule will cost the construction industry about $659 million per year, a March 2015 analysis by Bethesda, Maryland-based Environomics Inc. pegged the cost at nearly $4.9 billion per year — $3.9 billion in direct compliance expenditures such as additional equipment, monitoring and respirators, and more than $1 billion in indirect costs such as higher prices for construction materials and building products.

When calculating costs, OSHA took into account only initial training costs rather than the expenses of ongoing training or ensuring employees understand the risks and requirements as their job changes or new hazards are identified, said Cressinda Schlag, an associate at Keller & Heckman L.L.P. in Washington. The agency also did not take into account increased laboratory testing expenses and had only limited discussion of the costs of monitoring equipment, she said.

OSHA has broad authority to issue regulations, but it must demonstrate that its standards are reasonably necessary and appropriate to remedy a significant risk of material health impairment, per a 1980 U.S. Supreme Court ruling.

However, some opponents argue that the steep drop in silicosis deaths, which the Centers for Disease Control and Prevention say declined 93% to 165 in 2004 versus 1,065 1968, shows OSHA cannot meet the threshold set in the Supreme Court case, Industrial Union Department v. American Petroleum Institute. They also dispute OSHA's contention that the rule would save 600 lives a year.

“The courts are going to take a hard and deep look at this rule,” said Henry Chajet, of counsel at Jackson Lewis P.C. in Washington, which represents the trade associations in the New Orleans litigation. “We're going to make sure the courts are very much aware of the CDC findings and how that impacts the significant risk threshold that OSHA has to prove to support its rule.”

However, others say the courts are likely to defer to OSHA.

“OSHA's going to be given great deference for adopting these rules,” said Matthew Linton, of counsel at Holland & Hart L.L.P. in Denver. “I'm 99% confident that we're just going to have to adjust to the new normal. That's why there's so much time built in for the implementation.”

The associations have yet to determine whether they will seek an injunction to prevent the rule from taking effect. As it stands, construction employers are to comply with the new rule by June 23, 2017; general industry, maritime and hydraulic fracturing employers would have an additional year for most requirements.

“One of the difficulties of seeking a stay is you have to show a likelihood of success and harm (to the plaintiffs), so if something doesn't go into effect for a while, I have trouble convincing a court that they should take an extraordinary act and stay a rule,” Mr. Chajet said.

The building unions are concerned about the medical surveillance provisions, namely the 30-day trigger to include employees in the surveillance program, which provides medical exams and X-rays when employees are exposed to respirable crystalline silica above the limit, said Chris Trahan, deputy director of CPWR — The Center for Construction Research and Training in Silver Spring, Maryland, speaking on behalf of North America's Building Trades Unions.

The unions want all workers assigned to tasks that cannot be controlled below the respirable silica limit to be included in the surveillance program and are concerned the rule could lead to unfair employment practices such as employees being let go before the 30-day trigger from hazard exposure is reached or not being hired at all, she said.

However, the unions and other stakeholders do support parts of the rule, particularly a table devised by OSHA that matches common construction tasks with dust control methods such as using water to keep dust from getting into the air or using vacuums to capture dust so employers know exactly what they need to do to limit worker exposures.

“Strictly from a safety standpoint, I think it's extremely good, and I really like how OSHA did it,” said Bob Trinkleback, senior vice president and casualty risk control leader at JLT Specialty USA's analytics and consulting practice in Chicago. “I think it's practical, particularly the construction end of it.”

The rule also gives construction employers correctly following the table's provisions safe harbor protection from citations even if OSHA finds exposures above the limit.

“We need a standard that's protective, but we also need one that's achievable,” Ms. Trahan said. “There's no point in asking OSHA to put out a standard that's going to be unachievable. I think this is a great standard, and I think it's achievable and it's written more plainly than any health standard I've ever seen come out of OSHA. We're really happy with a lot of provisions.”